Appellate Division Vacates NJDEP Freshwater Wetlands GP#1 Issued to NJDOT

June 11, 2024
Posted by Michael J. Gross

Co-authored by Linda M. Lee

In a second go around in the Appellate Division for the same case, the Court vacated a Freshwater Wetlands General Permit #1 issued by the New Jersey Department of Environmental Protection (“NJDEP”) to the New Jersey Department of Transportation (“NJDOT”), which allowed for the rehabilitation and reconstruction of a Confined Disposal Facility (“CDF”) to be used for storing dredged materials from multiple waterways. In the Matter of Reauthorization of The Freshwater Wetlands General Permit #1 and Permit Modifications, A-2758-21 (App. Div. June 7, 2024). The Court found that NJDEP’s decision to issue the GP1 was legally erroneous and arbitrary under the plain meaning of the Freshwater Wetlands Protection Act (“FWPA”) Rules, N.J.A.C. 7:7A-1.1 et seq. Read more



NJDEP Proposes Bald Eagle Removal and Other Changes to New Jersey’s Threatened and Endangered Species Lists

June 6, 2024
Posted by Michael J. Gross

Co-authored by Steven M. Dalton and Matthew L. Capone

On June 3, 2024, the New Jersey Department of Environmental Protection announced a rule proposal which would update the endangered species and the nongame species lists promulgated by the Fish & Wildlife Endangered and Nongame Species Program (“ENSP”). These proposed updates would reflect, among other changes, the recategorization of the conservation status of certain species from the ENSP lists along with other structural and organizational amendments.

Primarily, the proposal celebrates the prospective reduced conservation status of three species, including the Peregrine Falcon, Bobcat, and Cope’s Gray Treefrog which each will have their conservation status reduced from “Endangered” to “Threatened.” Read more



Appellate Division Provides Insight Into Rights Inherent to Tidelands Grants and Tidelands Licenses

May 20, 2024
Posted by Michael J. Gross

Co-authored by Matthew L. Capone

A new unpublished case decided by the Appellate Division provides insight into how courts view those rights granted to the holder of tidelands grant versus those afforded by a tideland’s license. In the Matter of P.T. Jibsail Family Ltd. P’ship Tideland License involved the appeal of the issuance and modification to a tidelands license affecting properties owned by appellant Janine Morris Trust (“JMT”) and respondent P.T. Jibsail Family Limited Partnership (“Jibsail”) situated along Barnegat Bay. JMT argued that the approval of the modified tidelands license to Jibsail – allowing for the construction of a 300-foot-long dog-legged dock protruding into Barnegat Bay – was arbitrary, capricious, and/or unreasonable because the dock hampered JMT’s access to navigable waters.

In analyzing JMT’s argument the Appellate Division reviewed the fundamental differences between tidelands grants and tidelands licenses, including: (1) that a tidelands grant “is [a] conveyance in fee simple of real property,” Panetta v. Equity One, Inc., 190 N.J. 307, 309 (2007), while a tidelands license allows the licensee only “to rent an area of land . . . depicted on the [associated] plan”; and (2) that a tidelands grant generally extends the full width of the ripa or the width of the adjacent upland parcel whereas a tidelands license grants to the licensee the right to use only the area of tidelands circumscribed by a “license box” or an outline that closely approximates the size of the permitted structure and generally only includes water areas, not uplands. Ibid. Read more



NJDEP Adopts More Stringent Residential Soil Remediation Standards for Lead

May 7, 2024
Posted by Steven M. Dalton

Co-authored by Matthew L. Capone

The New Jersey Department of Environmental Protection (“NJDEP”) has updated the soil remediation standard for the ingestion-dermal exposure pathway for lead to bring the standard in line with the United States Environmental Protection Agency’s (“USEPA”) Integrated Environmental Uptake Biokinetic Model for Lead in Children (“IEUBK”). In effect, this change reduces by half the acceptable levels of lead contamination for soil in residential sites from the previous standard of 400 mg/kg to the new standard, 200 mg/kg.

This change was prompted by USEPA’s release of an updated IEUBK model in May of 2021 which recommended a new residential soil standard for lead of 200 mg/kg. New Jersey’s administrative code at N.J.A.C. 7:26D-7.2(a)4 requires NJDEP update its standards following revisions and changes to the IEUBK model. Read more



Remediation Programs Update from NJDEP

November 9, 2023
Posted by David J. Miller

Co-Authored by Matthew L. Capone

This fall, the New Jersey Department of Environmental Protection (“NJDEP”) announced the relaunch of two impactful resources for site remediation, the Brownfield Development Area (“BDA”) Program and the Technical Review Panel (“TRP”).

The BDA Program allows selected communities which are affected by multiple brownfield sites to work with Contaminated Site Remediation & Redevelopment (“CSRR”) to design and implement remediation and reuse plans for the affected properties simultaneously. Participation in the BDA Program is voluntary and does not affect the application of New Jersey’s other remediation laws, policies, and guidance on properties within a BDA, but does offer incentives to eligible municipalities and redevelopment authorities, including up to $5 million in grants through the Hazardous Discharge Site Remediation Fund. Read more



The Uniform Public Expression Protection Act: New Jersey’s Recently Enacted Anti-SLAPP Legislation

September 15, 2023
Posted by Afiyfa H. Ellington

On September 7, 2023, New Jersey enacted the Uniform Public Expression Protection Act (“UPEPA”), which provides for an expedited procedural dismissal process against a party who has filed a Strategic Lawsuit against Public Participation (“SLAPP”), a lawsuit brought on by individuals and companies seeking to stop critics from making public statements against them.

The UPEPA applies to an individual or company who files a cause of action in a civil action lawsuit against another individual or company based on the person’s communications on an issue under consideration or review by any branch of government.  The UPEPA also protects the exercise of freedom of speech rights contained in the constitutions of the United States and the State of New Jersey. Read more



BRICK AND STAFFORD CAFRA IMPERVIOUS AND VEGETATIVE COVER CHANGES

July 21, 2023
Posted by Michael P. Castore

On July 3, 2023, DEP issued notices of adoption accepting new and changed State Plan Policy Map Planning Area (“PA”) and Community Development (“CD”) boundaries, approved by the State Planning Commission as the boundaries for Coastal PAs and CAFRA Centers and Nodes, for Brick Township and Stafford Township. The map amendments being implemented by DEP include the entirety of both municipalities, and the changed Coastal PA boundaries will be incorporated into N.J.A.C. 7:7-13 for the purposes of applying impervious and vegetative cover requirements under CAFRA, some of which are described below. Read more



First Of Its Kind With More To Follow: NJDEP Settlement Proposal Addresses PFAS Contamination

July 11, 2023
Posted by Marc D. Policastro

Co-Authored by Matthew L. Capone

On June 28, 2023, the New Jersey Department of Environmental Protection (“NJDEP”) reached a proposed settlement with Solvay Specialty Polymers USA, LLC (“Solvay”) over Solvay’s discharging of per- and polyfluoroalkyl substances (“PFAS”) and other contaminants into public drinking water during Solvay’s thirty-year operation of a 243-acre chemical manufacturing plant in West Deptford, New Jersey.  Solvay, which was subject to a Statewide Directive regarding PFAS contamination of regional potable groundwater sources by NJDEP in March 2019, could not reach a resolution with the Department on testing and remediation of the Site – resulting in NJDEP filing a lawsuit against the manufacturer in November 2020. Read more



NJDEP Creates Avenue for Prioritized RAP Application Review

July 11, 2023
Posted by Marc D. Policastro

Co-Authored by Matthew L. Capone

The New Jersey Department of Environmental Protection (“DEP”) has instituted a new procedure for expediting the evaluation and review of certain Remedial Action Permit (“RAP”) Applications through the creation of a new Application Addendum form, available here.

This Application Addendum form allows a RAP applicant to be considered for prioritized review if the implemented remedial action is among five (5) preapproved categories set forth by the DEP.  These five approved RAP types include:

  • An Initial Soil RAP Application where the restricted use soil remedial action does not include an engineering control;
  • An Initial Soil RAP Application for soil contamination at schools, childcare centers, and residences where a presumptive remedy under N.J.A.C. 7:26E-5.3 is used, but is not required;
  • An Initial Soil RAP Application for soil contamination at schools, childcare centers, and residences where an alternative remedy pursuant to N.J.A.C. 7:26E-5.3 has been pre-approved by the Department;
  • An Initial Soil RAP Application where historic fill is the only area of concern being addressed by the RAP Application; and
  • An Initial Ground Water RAP Application for Monitored Natural Attenuation where the extent of the Classification Exception Area is limited to the property boundaries and no receptors are impacted.

For those sites meeting the above criteria, the DEP is accepting this Application Addendum both as a part of new applications and as an addition to pending applications. For those who have a pending RAP Application, a completed Application Addendum may be emailed to csrr_brap_submissions@dep.nj.gov.

The prioritized Application Addendum is a new development in the RAP Application process, and a situation the attorneys at Giordano, Halleran & Ciesla are continuing to monitor. For a more in-depth review of how this change impacts your site’s RAP Application, contact our environmental law attorneys here.



PACT Flood Hazard & Stormwater Management Rules Update

June 6, 2023
Posted by Steven M. Dalton

Updating our prior alerts regarding the previously published Flood Hazard and Stormwater Protection Against Climate Threats rule proposal, NJDEP has filed the rule for publication of adoption. With this action, it is anticipated that the notice of adoption will be published in either the July 3 or July 17 New Jersey Register, and the amended rules will become immediately effective upon adoption.  The amendments will substantially change the design flood elevation of regulated fluvial flood hazard areas, implementing up to a 3 foot increase in regulated fluvial flood hazard area elevations statewide. The amendments will also require regulated major development to design stormwater facilities to manage stormwater runoff for both present-day storms, and future storms utilizing year 2100 rainfall projections that are significantly higher than current rainfall data.

A courtesy copy of the draft adoption can be found here.  Of note, NJDEP is proposing to change an element of the grandfathering/legacy approval provisions benefiting projects that are not subject to jurisdiction under the current Flood Hazard rules. The rule proposal provides that projects currently subject to Flood Hazard jurisdiction must have applications deemed administratively and technically complete prior to publication of the adoption notice in the New Jersey Register to be grandfathered.  However, if no Flood Hazard approval is currently required for a project under the existing rules, the rule as revised in the adoption notice (see N.J.A.C. 7:13-2.1(c)4) provides for grandfathering protection for projects currently outside of flood hazard jurisdiction if, prior to adoption, they secured a qualifying local approval under the MLUL, such as site plan or subdivision approval, or a building or construction permit.  If such local approvals are not required, grandfathering may still be achieved if construction commences prior to the effective date of the rules. The initial proposal contemplated grandfathering only if all required approvals were obtained and the regulated activity commenced prior to the effective date of the new rules, which would have made it more difficult for projects that currently do not require a permit to qualify for grandfathering protection.

If you have questions regarding qualification for grandfathering or how the forthcoming rules may affect your project, please contact one of our attorneys.